Bath County Courthouse, Owingsville, Kentucky. This is the third and current courthouse built in 1866. The contractor was Frederick Visscher. New cupola, wings and front extension added during 1903-04 remodeling. Listed on National Register of Historic Places in 1978. Photo by Mike Stevens, 2015.
Published Court of Appeals appellate cases for this week –
October 2, 2015: Links are to full text of PDF decision with AOC.
825. Family Law. Allotted parenting time and imposition of supervised visitation reversed.
Brandon Tyler Ryan vs. Mariya Ryan
COA Published Opinion Reversing and Remanding Boyd County
CLAYTON, JUDGE: Brandon Tyler Ryan appeals from the Boyd Circuit Court’s order, entered on December 2, 2014, amending in part and denying in part his Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend, or vacate the trial court’s order, which was entered on November 10, 2014. The issue involves the trial court’s suspension of his allotted parenting time with his fourteen-year-old daughter and the imposition of supervised visitation. After careful consideration, we reverse and remand.
827. Workers Compensation. Interest on lump sum death benefit accrues from date of death and not appointment of administrator of estate.
Flagship Transportation LLC vs. Estate of Cory Keeling
COA Published Decision Affirming. Workers Compensation Board
JONES, JUDGE: This appeal comes to us following a decision by the Workers’ Compensation Board (“Board”) holding that interest on a lump-sum death benefit begins to accrue at the time of death as opposed to the date an administrator is appointed by the court to represent the estate in probate. On appeal, the Appellant, Flagship Transportation LLC, argues that interest should not begin accruing until the later date. For the reasons set forth below, we affirm.
The statute does not say that the payment is due when the administrator is appointed or when some other action in probate has been accomplished. It states that the payment is due to the “decedent’s estate.” The estate comes into existence at the moment of the death.
Selected Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from September 11, 2015. Links are to full text of decision in PDF at AOC.
811. Torts. Vicarious liability for employee. Negligent supervision. Duty to prevent negligent harm in special relationship.
Kaylee Culp, a Minor, by and through next friend and parent vs. City of Ashland
COA Not to be published Opinion Affirming in Part, Reversing in Part, and Remanding. Boyd County.
TAYLOR, JUDGE: Kaylee Cupp, a minor, by and through her next friend and parent, Cathy Cupp (referred to as Cupp) brings this appeal from a January 21, 2014, summary judgment of the Boyd Circuit Court dismissing Cupp’s tort action against the City of Ashland (City). We affirm in part, reverse in part, and remand.
Employee Hall and parolee Broughton while at residential half-way house meet two minor females. Employee has sexual intercourse with minor T.R. Parolee later (and unknown to employee) has sexual intercourse with minor Kaylee Cupp (appellant).
Cupp, as parent and next friend of Kaylee, filed the underlying action against the City, Transitions, Hall, and Broughton in 2011. Relevant to this appeal, Cupp claimed that the City was vicariously and directly liable for Broughton’s intentional criminal conduct and for Hall’s negligent conduct. The City filed a motion for summary judgment alleging that Hall and Broughton acted outside the scope of employment, thus relieving the City of vicarious liability. Also, the City maintained that it was not directly negligent in causing Kaylee’s injury.
Summary judgment was granted in favor of City dismissing all claims.
An employer is vicariously liable for an employee’s tortious conduct under the doctrine of respondent superior. For an employer to be liable under respondent superior, the employee must have been acting within the scope of employment at the time of his tortious act. Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000). It is recognized that an intentional tort committed by the employee may still be in the scope of employment if “its purpose, however misguided, is wholly or in part to further the master’s business.” Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005) (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts 500, 505 (5th ed. 1984)). However, where an employee commits an intentional tort that is motivated by purely personal reasons, the employee acts outside the scope of employment, and the employer is not vicariously liable. Papa John’s Intern. Inc. v. McCoy, 244 S.W.3d 44, 51 (Ky. 2008). Our Supreme Court has cited with approval the Restatement (Third) of Agency § 7.07 (2006), which provides, in part:
(1) An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.
(2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
See Papa John’s Intern., Inc. v. McCoy, 244 S.W.3d 44, 51 (Ky. 2008). Thereunder, an employee is acting outside the scope of employment if the employee acts “within an independent course of conduct not intended . . . to serve any purpose of the employer.” Restatement (Third) of Agency § 7.07 (2006).
Apart and distinct from vicarious liability is the direct liability of an employer. Thereunder, an employer is liable for its own improper and negligent actions. The tort of negligent supervision is based upon the employer’s independent negligent act of failing to properly supervise an employee. To be liable under negligent supervision, the employer must have known or had reason to know of the risk that the employment created. McDonald’s Corp. v. Ogborn, 309 S.W.3d 274 (Ky. 2009) (recognizing that the Kentucky Supreme Court adopted Restatement (Second) of Agency § 213 setting forth the tort of negligent supervision). To set forth a prima facie case of negligent supervision, our Supreme Court noted:
[T]he plaintiff must allege that the defendant knew or had reason to know of the employee’s harmful propensities; that the employee injured the plaintiff; and that . . . , supervision, . . . of such an employee proximately caused the plaintiff’s injuries.
Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 844 (Ky. 2005).
We conclude, as did the circuit court, that Broughton’s and Hall’s intentional criminal acts were outside the scope of employment and that the City is not vicariously liable therefore under the doctrine of respondent superior. Likewise, we do not believe that the City is directly liable upon the tort of negligent supervision.
In sum, we hold that the circuit court properly rendered summary judgment determining that the City was not vicariously liable under the doctrine of respondent superior or directly liable under the tort of negligent supervision. We, however, reverse entry of summary judgment upon the narrow issue of whether a duty exists upon the City pursuant to City of Florence, 38 S.W.3d 387, and remand for proceedings as set forth in this Opinion.
820. Qualified official immunity, school officials, and injuries to student from a fight involving other students
Pike County Board of Education vs. Eric Madden
COA Not to be Published Opinion Reversing. Pike County.
KRAMER, JUDGE: Eric Madden filed suit in Pike Circuit Court alleging that, but for the negligence of the above-captioned appellants, he would not have been injured in a fight with another student (Thomas Forsyth1) that occurred in a restroom on the campus of Pike County Central High School during school hours and during a school event (an ice cream picnic). Some of the appellants (i.e., the Pike County Board of Education and School System, along with the appellants in their official capacities as its employees) moved for summary judgment asserting governmental immunity from suit. The remaining appellants (i.e., David Rowe, Lee Burke, and Tommy Thompson in their individual capacities) asserted qualified immunity from suit. The circuit court denied summary judgment and, pursuant to our jurisprudence recognizing an immediate right of appeal in this context, this interlocutory appeal followed. See Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009); Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010); Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006).
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).
AOC version of this week’s decisions can be accessed by clicking here.
The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.
[gview file=”https://kycourtreport.com/wp-content/uploads/2015/10/MNT10022015.pdf”]
